People v. Beltran

This is an appeal by the People from an order granting a new trial to defendant Jesus Deanda Moreno. Defendant is purportedly appealing from that portion of the order granting him a new trial “in so far as said order denies him a new trial upon the issues raised by his pleas of not guilty.”

Defendants were charged in counts I and II of the information with robbery and in count III with kidnaping for the purpose of robbery. Each defendant pleaded not guilty to all counts and their joint trial before a jury resulted in verdicts finding defendants Beltran and Louis Moreno guilty on all three counts. As to defendant Jesus Deanda Moreno the jury disagreed on counts I and II (robbery) and found him not guilty on count III (kidnaping for the purpose of robbery). The cause as to respondent Jesus Deanda Moreno was reset for trial on counts I and II, whereupon he entered the additional pleas of former acquittal and once in jeopardy. It was stipulated that these pleas raised no issues of facts but questions of law only for determination by the court. Both pleas were overruled and the cause went to trial by a jury before the Honorable Ranse R. Sischo. Respondent was found guilty on both counts. A motion for new trial was made upon all the grounds provided in section 1181 of the Penal Code. Judge Sischo having returned to his own county the motion was heard by the Honorable Paul Nourse.

In granting the motion for a new trial Judge Nourse made it clear that the motion was granted upon only one ground, stating: “Motion for new trial will be granted solely upon the ground that the court erred in holding that the judgment of acquittal of kidnaping in the first trial under this information did not bar the People from presenting evidence upon the issue as to this defendant’s participation in those crimes. I am granting the motion on that sole ground. I am not reviewing the other grounds assigned by the defendant, and am not reviewing the evidence. I am granting this motion on the sole ground stated. ’ ’

Respondent contends that he is not appealing from the order granting him a new trial but because of the fact that the trial court did not consider all the grounds set forth in his motion for new trial he has “filed a cross-appeal from that portion of the order wherein it might be construed as a denial of a new trial as to some issues. ” Section 1237 of the Penal Code sets forth those cases in which an appeal may be taken by the defendant. He cannot appeal from an order granting a motion for a new trial and his purported appeal from a portion thereof is unauthorized and therefore will be dismissed.

The evidence and the instructions to the jury in the first trial have by stipulation been made a part of the record on appeal. The undisputed evidence is that defendants Beltran and Louis Moreno entered a liquor store on East Foothill Boulevard about 4:30 in the afternoon; both were armed; they held up the proprietors, the accountant and a customer in the store and ordered them into the back room, a distance of about 25 feet; they took the money that was in the cash register and money from a secret hiding place which they"

Respondent testified and denied all knowledge of the criminal intent of the other two defendants to rob the store. His story was supported by the testimony of his brother, Louis Moreno and that of Beltran. There is, however, other substantial evidence upon which a conclusion could be reached that respondent did have knowledge which would make him an abettor.

Bes Judicata as Applied to Criminal Cases

Respondent does not contend that the evidence does not support the verdict but maintains that the question of his guilty knowledge was determined by the jury at the first trial when it acquitted him of the charge of kidnaping and that the verdict was res judicata of that issue; that evidence as to this knowledge was improperly introduced by the prosecution at the second trial and without that evidence he could not have been convicted.

Appellant asserts that the question is governed by section 954 of the Penal Code as amended in 1927 and that each count which charges a separate and distinct offense must stand upon its own merits and disposition of one count has no bearing upon the verdict with respect to other counts contained in the information or indictment, citing People v. Ranney, 123 Cal.App. 403 [ 11 P.2d 405 ].

That section provides that “a verdict of acquittal of one or more counts shall not be deemed or held to be an acquittal of any other count.” However, although under this section each count stands on its own merits, if a defendant is acquitted on one and convicted on the other and the verdicts are irreconcilable, the latter verdict is void. (People v. Novo, 12 Cal.App.2d 525 , 527 [ 55 P.2d 915 ]; In re Johnston, 3 Cal.2d 32 , 36 [ 43 P.2d 541 ].)

The doctrine has been applied in California in criminal cases under different circumstances. In People v. Majado, 22 Cal.App.2d 323 [ 70 P.2d 1015 ], the defendant was prosecuted for failing to provide for a minor child, the offense having been committed after he had served a sentence for a previous failure to provide for the same child. His proffered defense that the child was not his was held res judicata, the court stating that there could have been no prior conviction in the absence of a judicial determination that the defendant was the father of the child. In Oliver v. Superior Court, 92 Cal.App. 94 [ 267 P. 764 ], the indictment contained 33 counts accusing the defendants of grand larceny and embezzlement and one of conspiracy. It was alleged that in furtherance of the conspiracy the defendants committed certain overt acts which were delineated as the same offenses as those charged in the first 33 counts. The jury acquitted some of the defendants of grand larceny and embezzlement but failed to agree on the conspiracy charge. These defendants brought proceedings in prohibition to prevent the superior court from retrying them for conspiracy upon the ground the subject matter of that count was res judicata. The court held that since the sole overt acts averred were larceny and embezzlement of which the petitioners had been acquitted, the remaining portion of the count charging conspiracy was insufficient to constitute criminal conspiracy and by finding that one of the overt acts charged as parts of the conspiracy had been committed the jury in effect acquitted the petitioners of the offense of conspiracy. (See, also, In re Johnston, 3 Cal.2d 32 [ 43 P.2d 541 ].)

In United States v. Oppenheimer, 242 U.S. 85 [ 37 S.Ct. 68 , 61 L.Ed. 161 , 3 A.L.R. 516 ], the defendant was indicted for a conspiracy to conceal assets from a trustee in bankruptcy. The defendant in a so-called motion to quash, which was in substance a plea in bar, pleaded that upon a former indictment for the same offense there had been an adjudication that it was barred by the statute of limitations. The prosecution contended that the doctrine of res judicata did not exist in criminal cases except in the modified form of the Fifth Amendment and that a decision upon a plea in bar could not prevent a second trial when the defendant had never been in jeopardy. The court quoted with approval from the case of Reg. v. Miles, L.R. 24 Q.B. Div. 423, 431 holding that where a criminal charge has been adjudicated upon by a court having jurisdiction, the determination is final as to the matter so adjudicated upon and may be pleaded in bar to any subsequent prosecution for the same offense and in this respect the criminal law is in unison with that which prevails in civil proceedings. The court concluded by stating: “The safeguard provided by the Constitution against the gravest abuses has tended to give the impression that when it did not apply in terms, there was no other principle that could. But the 5th Amendment was not intended to do away with what in the civil law is a fundamental principle of justice ...”

In United States v. DeAngelo, 138 F.2d 466 , the defendant and two others were jointly indicted for having robbed two bank messengers. At the same time they were indicted by separate bill for having conspired to commit the robbery of which they were accused in the first mentioned indictment. Defendant was acquitted of the robbery and upon trial on the conspiracy indictment he proposed to prove the former verdict of acquittal and that the material issues at the robbery trial as to his alleged presence at and participation in the robbery were the same issues as certain of the allegations and offers of proof at the second trial. This the trial court refused him the right to do. Upon appeal the court stated that the question presented was whether the government was es-

Thus whether a defendant is tried on two separate-indictments or upon two counts of one indictment each count being considered as a separate and distinct offense, the doctrine of res judicata applies as to any matters in issue which the verdict determined. Whether the doctrine applies in the instant ease then depends upon whether the acquittal of defendant of the kidnaping charge, which necessarily determined the issue of his knowledge as to that crime, since he could be guilty only as an aider and abettor, was a determination that he did not have knowledge which would make him an aider and abettor in the crime of robbery, both crimes having arisen out of the same transaction.

It is said in People v. King, 30 Cal.App.2d 185 , 203 [ 85 P.2d 928 ] : “In this state those persons who aid and abet in the commission of a criminal offense, though not being present, are liable for all the natural and probable consequences incident to the commission of the act which they have counseled or advised. As at common law, the nature of the crime actually committed, and not the act contemplated, fixes and determines the liability and character of guilt not only of him who committed the act, but of those who counseled him to proceed.” But he would be guilty only to the extent

By his pleas of once in jeopardy and former acquittal, respondent sought to raise the defense of res judicata. Since the two crimes with which he was charged are separate and distinct offenses he was not placed in double jeopardy. While the doctrine of res judicata is necessarily included in the plea of once in jeopardy, that doctrine may also be applicable where a plea of once in jeopardy is not available. (United States v.Oppenheimer, 242 U.S. 85 [ 37 S.Ct. 68 , 61 L.Ed. 161 , 3 L.R.A. 516 ].) Respondent should have raised the point by proper and timely objection to the introduction of the evidence. However, it is evident from the record and from the briefs of counsel that the question of res judicata was discussed at length with the court in chambers prior to its ruling on the pleas. It is also apparent that counsel for respondent was of the opinion that since the court had ruled adversely on the question of his right to present those defenses, any objections to the evidence upon the ground that the issue to which it related was res judicata would not be sustained. Furthermore, the trial court granted the motion for new trial upon the ground that the trial judge had erred in ruling that res judicata was not applicable and not upon'the ground that the error consisted in ruling against respondent on his pleas of once in jeopardy and former acquittal. For these reasons

Respondent’s codefendants testified that their counsel had told them if all three defendants would plead guilty to one count of robbery, the district attorney would dismiss the other count of robbery and the count of kidnaping; that counsel had told them the punishment for kidnaping was much greater than for robbery; that at no time did they ask respondent to plead guilty in order to lighten their punishment. Respondent contends the purpose of the testimony was to show the state of mind and motives of the codefendants in testifying for respondent; that no testimony was given as to whether or not the district attorney had expressed himself on the subject of dismissing any of the counts.

The district attorney in his closing argument told the jury something of the custom in his office with respect to dismissing some of the counts of an information if a defendant should plead guilty to one or more counts. Undoubtedly the argument was upon irrelevant matter outside the issues and concerned facts not in evidence. There does not, however, appear to be anything prejudicial to respondent in the statements objected to, especially since there was an abundance of substantial evidence to support the verdict. Indeed in his brief respondent virtually concedes that the evidence was sufficient.

Errors in Rulings on Objections

Respondent’s character witnesses testified that his reputation in the community for honesty, peace and quiet was good. On cross-examination the prosecution asked the witnesses whether they had heard that respondent had been arrested in El Paso for possession of marijuana; arrested in Los Angeles for possession of marijuana; for rape; for petty theft and for interfering with an arrest. Objections to the questions were overruled and the witnesses answered in the negative. The witnesses were then asked whether they would still say respondent’s reputation for truth, honesty, peace and quiet was good.

A witness can be questioned only as to his knowledge of the reputation of the accused in relation to the traits involved in the offense charged, including his reputation as a law-abiding citizen (People v. Gin Shue, 58 Cal.App.2d 625 , 634 [ 137 P.2d 742 ].) When the witness has testified his credibility is then in issue and one way by which the prosecution may test the accuracy and weight of his statements

The direct examination of respondent’s witnesses was limited to his general reputation. The cross-examination should not have been extended to include inquiries as to what the witnesses personally might have thought of his reputation if they had had additional information. (People v. Neal, 85 Cal.App.2d 765 , 771 [ 194 P.2d 57 ].) However, none of the witnesses changed his testimony, each of them maintaining respondent’s reputation in the community was good.

Although there was error in overruling respondent’s objections to the prosecution’s questions on the cross-examination of his character witnesses, upon examination of the entire record, including the evidence, we are of the opinion that the errors complained of have not resulted in a miscarriage'of justice (Const., art. VI, § 4%) and the motion for new trial should not be granted upon the grounds of the errors assigned.

The order granting the motion for new trial is reversed and the purported appeal by respondent is dismissed. The trial court is directed to pronounce judgment against defendant as required by law.

Moore, P. J., and MeComb, J., concurred.